This blog comes from Colorado firm Higgins, Hopkins, McLain & Roswell. Our goal is to use this blog as a means by which to share news and updates regarding construction litigation in Colorado. While we specialize in litigation of complex construction claims, including construction defect matters, we also use this blog as a platform to share thoughts and ideas regarding risk management strategies that can be implemented to minimize the risk of construction related claims.

Thursday, February 28, 2019

Colorado House Bill 19-1170: Undefined Levels of Mold or Dampness Can Make a Leased Residential Premises Uninhabitable

By Steve Heisdorffer

One of the 407 bills
the Colorado legislature is considering as of the date of this blog post is
House Bill 19-1170, the Residential Tenants Health and Safety Act, which can be
found at https://leg.colorado.gov/bills/hb19-1170
and clicking on the link for the recent bill text. The bill passed the House on February 26 and
is in the Senate for consideration. The bill currently adds two substantive
conditions to those conditions that make a residential premises uninhabitable. One is the lack of functioning appliances
that conformed to applicable law when installed and that are maintained in good
working order. The second is “mold that is associated with dampness, or there
is any other condition causing the premises to be damp, which condition, if not
remedied, would materially interfere with the health or safety of the tenant…,” referred to here as “the mold or dampness
provision.” The bill also amends various
procedural provisions of Colorado law to make enforcement by a tenant easier
and broadens tenant remedies. The bill
grants jurisdiction to county and small claims courts to grant injunctions for
breach. This article focuses on the mold
or dampness provision.

The mold or dampness
provision is vague and will likely lead to abuse.First, there is mold everywhere.While expert witnesses routinely testify
about the level of exposure that is unacceptable, no generally accepted medical
standards for an unacceptable level of mold exposure currently exist, and each
person reacts to mold differently.There
is no requirement in the bill that mold exposure exceed levels that are generally
considered harmful by experts in the field, or even in excess of naturally
occurring background levels.Second, some
sources estimate that there are over 100,000 different species of mold.No harmful effects have been shown for many
species of mold, while other species of mold are considered harmful.

It could be argued that
the provision that the condition “materially interfere with the health or
safety of the tenant…” provides the standard for the level of exposure and the
type of mold. Unfortunately, there are
wide disagreements about what level of exposure would “materially interfere”
with health or safety, and what may be completely benign to the average person
may interfere with the health and safety of a specific individual.

More troubling, our
society’s general concerns about mold have helped create a cottage industry of
self-proclaimed mold experts willing to make dubious claims under oath. The medical community in general has been
slow to discipline doctors that are willing to testify without any scientific
support that cancer, memory loss, autism and other diseases or conditions were
caused by mold exposure. The same general concerns about mold have led to the
creation of several laboratories that provide mold test results of no known
medical value-- for the right fee. In
short, in the current climate, the limitation that the alleged mold or dampness
materially interferes with the health or safety of the tenant is no limitation
at all.

For additional
information regarding House Bill 19-1170 or about construction defect
litigation in Colorado, generally, you can reach Steve by telephone at (303)
653-0044 or by e-mail at heisdorffer@hhmrlaw.com.

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Disclaimer

The information contained in this blog is provided for informational purposes only. It is not legal advice and should not be construed as providing legal advice on any subject matter.

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Higgins, Hopkins, McLain & Roswell exists to embody and exemplify the principles of service and stewardship. In everything we do, we focus on serving our clients selflessly and to the best of our ability. In doing so, we always have in the forefront of our minds our obligation to act as the stewards of our clients’ trust, confidences, and resources. We are highly regarded for our expertise in construction law and the litigation of construction claims. We represent a wide variety of clients, from individuals, to small businesses, to Fortune 500 companies.